Tucker v. Board of Educ. of Town of Norfolk

• Decision Date: 26 July 1983
• Citation: 190 Conn. 748,462 A.2d 385
• Court: Connecticut Supreme Court
• Parties: , 12 Ed. Law Rep. 790 Cynthia TUCKER v. BOARD OF EDUCATION OF the TOWN OF NORFOLK.

Page 385

462 A.2d 385

190 Conn. 748, 12 Ed. Law Rep. 790

Cynthia TUCKER v. BOARD OF EDUCATION OF the TOWN OF NORFOLK.

Supreme Court of Connecticut.

Argued May 10, 1983.

Decided July 26, 1983.

Martin A. Gould, Hartford, for appellant (plaintiff).

Thomas N. Sullivan, Hartford, for appellee (defendant).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal involves the same parties that were before this court in Tucker v. Board of Education, 177 Conn. 572, 418 A.2d 933 (1979), (Tucker I ), in which the plaintiff had appealed from the termination by the defendant board of education of her contract of employment to teach. ¹ In that case, we agreed with the board's contention that insubordination, with which the plaintiff had been charged, ² "in and of itself constitutes 'other due and sufficient cause' for the termination of the plaintiff's contract and is a valid statutory basis for dismissal under the provisions of [General Statutes] § 10-151(b)(6)." Tucker v. Board of Education, supra, 577, 418 A.2d 933. We also pointed out that "we [were] further satisfied that the evidence was clearly sufficient to sustain the opinion of the impartial hearing panel and the [defendant] board that the plaintiff was guilty of insubordination." Tucker v. Board of Education, supra, 580, 418 A.2d 933. This court was of the opinion, however, that "dismissal constituted exceedingly excessive punishment for the plaintiff's misconduct, and an abuse of discretion, especially in the light of the plaintiff's excellent and unblemished school record as a capable, dedicated teacher." Tucker v. Board of Education, supra, 581-82, 418 A.2d 933. In finding that the defendant board had followed the required statutory procedures concerning the termination of the plaintiff's contract, we concluded that the board had jurisdiction "to take some action against the plaintiff, short of the termination of her contract." Tucker v. Board of Education, supra, 582, 418 A.2d 933. In reversing the board's action of terminating the plaintiff's contract, we returned the case to the board "for the imposition of a penalty consistent with the views expressed in this opinion." ³ Tucker v. Board of Education, supra.

On June 4, 1979, the board sent a letter to the plaintiff offering her reinstatement to a full-time teaching position as well as informing her of its decision to consider her absence from employment from the beginning of the 1976-77 school year to August 29, 1979, as a period of suspension without pay or benefits. ⁴

Thereafter, on November 14, 1980, the plaintiff brought this action against the board in which she sought: (1) a declaratory judgment that the board acted in an arbitrary and illegal manner in suspending her; (2) reimbursement of all salaries and fringe benefits lost as a result of the board's action; and (3) money damages. The trial court, in its memorandum, noted that in Tucker I we had "concluded that the board had jurisdiction to take some action against the plaintiff short of the termination of her contract." It, therefore, concluded that the board's action suspending her without pay for the period referred to was not illegal and that it did not act "in an arbitrary and illegal manner." Additionally, it determined that it should not substitute its judgment for that of the defendant board.

On appeal, the plaintiff makes two claims. Her first claim is that the defendant board erred because suspending her without pay for the period beginning with the 1976-77 school year to August 29, 1979, was excessive, arbitrary and illegal. Second, she claims that the trial court erred in concluding that it should not substitute its judgment for that of the board as to the penalty the board did in fact impose upon the plaintiff after we returned the matter to the board.

In responding to these issues we point out that the board, in imposing the suspension, did impose a penalty "short of termination of her contract" and had jurisdiction to do so. Tucker v. Board of Education, supra, 582, 418 A.2d 933. While the plaintiff maintains that this is an excessive penalty, it is one which the board could legally impose under Tucker I. In carrying out the mandate of this court, the board was limited to the specific direction of the mandate as interpreted in the light of the opinion. Gary Excavating Co. v. North Haven, 163 Conn. 428, 430, 311 A.2d 90 (1972); Mazzotta v. Bornstein, 105 Conn. 242, 243, 135 A. 38 (1926). On remand, while the board could not alter our decision, it could, however, take action which was not inconsistent with our decision. See King v. Alaska State Housing Authority, 571 P.2d 1010, 1012 (Alaska 1977); Mazzotta v. Bornstein, supra, 105 Conn. 244, 135 A. 38. The suspension imposed was, as a matter of law, within our remand to the board.

We have, nevertheless, decided, in the interest of justice, to examine the authority to which the plaintiff refers us on her claim of excessive penalty. In that regard, the plaintiff argues that a review of the cases cited in her brief makes it apparent that the board's three year suspension is excessive. We do not agree. A review of these cases, which are from New York and West Virginia, does not at all support her position. The New York cases, in which the court reviewed the procedure by which the penalty was imposed upon the employee, are premised upon the court's power by virtue of specific statutory authority to do so. See 7B N.Y.Civ.Prac.Law § 7803(3) (McKinney 1981). This statutory power in New York was created in 1955 ⁵ "to overrule [court] holdings ... that no judicial review was available as to the measure of punishment imposed by administrative bodies acting within their powers." Mitthauer v. Patterson, 8 N.Y.2d 37, 41, 201 N.Y.S.2d 321, 167 N.E.2d 731 (1960); Matter of Pell v. Board of Education, 34 N.Y.2d 222, 235, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974) ("There is no doubt that the reason for the enactment of the statute (CPLR 7803) was to make it possible, where warranted, to ameliorate harsh impositions of sanctions by administrative agencies."); see Barsky v. Board of Regents, 305 N.Y. 89, 111 N.E.2d 222 (1953), aff'd, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829 (1954). Connecticut has no such statute. Accordingly, we have no such statutory authority as the New York courts in such matters.

The only other case cited in the plaintiff's brief is the West Virginia case of Fox v. Board of Education, 236 S.E.2d 243 (W.Va.1977). It does not avail the plaintiff. In Fox, the question before the West Virginia court was whether the plaintiff's misconduct constituted wilful neglect of duty so as to warrant his dismissal. The court held that it did not and found that dismissal was "so unduly severe as to be arbitrary and unreasonable." Fox v. Board of Education, supra, 246. In doing so, it pointed to West Virginia precedent that " '[t]he authority of a county board of education to dismiss a teacher under W.Va.Code 1931, 18A-2-8 ... must be based upon the just causes listed therein [wilful neglect of duty was one listed] and must be exercised reasonably, not arbitrarily or capriciously.' " (Emphasis added.) Fox v. Board of Education, supra, 244-45. Fox is distinguishable from this case. Unlike Fox, in Tucker I we found evidence "clearly sufficient" to sustain the opinion of both the defendant board and the impartial hearing panel that the plaintiff was guilty of insubordination, and we decided there that under General Statutes § 10-151(b)(6) insubordination constitutes "legal cause" for termination of a tenured teacher's contract of employment as a matter of law. Tucker v. Board of Education, supra, 177 Conn. 579-80, 418 A.2d 933. Cf. Catino v. Board of Education, 174 Conn. 414, 389 A.2d 754 (1978). In sum, the cases cited by the plaintiff do not support her claim that the action of the board in imposing the suspension was excessive, arbitrary and illegal.

In addition, we cannot accept the plaintiff's claim that the trial court erred in concluding that it should not substitute its judgment for that of the board in reviewing the penalty of suspension imposed. She argues that because the board failed to impose a reasonable penalty, the trial court was "entitled and obligated" to review the merits of the board's decision and to substitute its judgment for that of the board. We do not agree.

It is fundamental that a declaratory judgment cannot be used as a substitute for an appeal. See Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 105, 291 A.2d 721 (1971); 2 Anderson, Actions for Declaratory Judgments (2d Ed.1951) § 678; Borchard, Declaratory Judgments (2d Ed.1941) pp. 350-52; 22 Am.Jur.2d, Declaratory Judgments § 17. No appeal, of course, could be taken from the board's action of June 4, 1979, because under General Statutes § 10-151(f) an appeal may be taken only from a decision to terminate a teacher's contract of employment. See Delagorges v. Board of Education, 176 Conn. 630, 633-34, 410 A.2d 461 (1979). The plaintiff has not realistically considered the narrowness of the review afforded by her action for a declaratory judgment. It is not ...